April 23, 2012

How John Edwards Could Get Cornered By the Prosecution in His Campaign Finance Trial

As a card-carrying member of the Betrayed by John Edwards Alumni Association, I’ll admit that my initial response to his federal indictment for violating campaign laws was skepticism. Yes, Edwards was an egocentric, lying, baby-denying cad who betrayed his dying wife. I doubted, however, that he had committed a crime.

But now that the Edwards trial is getting started—opening statements will be heard today in Greensboro, North Carolina—I have begun thinking that things are a bit more complicated. To be sure, I still dread the trial’s potential circus atmosphere, including the probable testimony of Edwards’s mistress Rielle Hunter. And, of course, the legal question of Edwards’s guilt or innocence is impossible for an outside observer like me to determine. But, having spoken with both trial witnesses and election lawyers, I have been persuaded that there are enough question marks surrounding Edwards’s conduct to warrant a trial. And I think there’s a good chance he will be convicted.

Some aspects of the indictment against Johnny Reid Edwards still have an aura of prosecutorial over-reach. The dramatic narrative in the indictment is the tale of Edwards’s frantic financial efforts to cover-up Hunter’s pregnancy and mere existence. Much of this story-line is embodied in Count One of the indictment, in which now-deceased Dallas trial lawyer Fred Baron plays a central role. Baron, who was both a close friend of Edwards and chairman of his 2008 campaign finance committee, personally spent more than $200,000 on charter flights and hotel rooms (from the Westin Diplomat Hotel in Hollywood, Florida, to the Four Seasons in Santa Barbara) to keep Hunter out of sight. Even though Baron’s motivations were presumably complex (friendship must have been a factor), the government contends that everything he did was solely for political purposes—and, thus, illegal. This charge—eroding as it does any distinction between the broadly personal (keeping Elizabeth Edwards and the public in the dark) and the strictly political—is the least persuasive aspect of the prosecution’s case.

Count Two in the indictment is much more straightforward—and, based on my reporting, potentially more hazardous for Edwards. This charge centers on the allegation that the candidate and his aide Andrew Young solicited and received $725,000 from nonagenarian philanthropist Bunny Mellon in 2007 and 2008, money that was used to cover up Edwards’s affair—and that exceeded the legal limit of $25,000 in aggregate campaign contributions per election cycle.

Up to now, the pre-trial coverage has assumed that Mellon, like Baron, was intent on helping Edwards cover up his philandering. But the trial will raise the strong possibility—and you will have to trust me on the sourcing for this—that the then-97-year-old socialite was as ignorant of the existence of Rielle Hunter (or any other Other Woman) as any Democratic voter besotted with John Edwards. When she was asked for the money, delivered in seven installments beginning in June 2007, she apparently thought that she was donating in some round-robin fashion to the Edwards campaign, not covering up an affair.

I am also told that there was an innocent, if comic, reason why Mellon shrouded the donations in secrecy. She wrote the checks to her decorator Bryan Huffman, ostensibly for furniture (“antique Charleston chair” read one memo), and the money was immediately signed over to Young’s wife. The subterfuge, I am told, was not designed to fool the FEC or federal prosecutors. Instead, the hush-hush maneuvering was designed to deceive the one person she feared—her sternly proper lawyer Alex Forger—and protect her from another lawyerly lecture on the folly of her infatuation with Edwards.

If the trial shows that Mellon believed her checks for $725,000 were intended for campaign purposes, Edwards’s defense under Count Two could be severely curtailed. Edwards’s most straightforward defense—that he sought Mellon’s money in order to hide the affair and pregnancy from his wife Elizabeth—would suddenly vanish. If Bunny Mellon did not know about the affair, how could her contributions be personal rather than political? Edwards would probably be reduced to contending that his courtier Young went rogue when he received the money from Mellon. Young, who will be a high-profile witness at the trial, has his own credibility problems since (yes, this is a bad melodrama) he initially claimed that Hunter’s baby was his. But what would have been the motive for him to have solicited money from Mellon without ever telling Edwards?

(There was another reason I was originally dubious about the Edwards trial: The charges, I supposed, were themselves anachronistic in the anything-goes political era created by Citizens United. Had Edwards been running for president this year, I had assumed that a Mellon or a Baron could have legally written large checks to a pro-Edwards super PAC tasked with hiding Hunter. But after talking to election lawyers, I realized that this would still be against the law. As long as the affair with Rielle Hunter was a secret known only to Edwards, Young, and a few other people in the campaign, a super PAC could not funnel money to her since that would constitute illegal coordination. Under this legal theory, Edwards’s super PACs would be caught in a Catch-22: It legally could hide Hunter only when the public already knew about her.)

Of course, before Edwards was elected to the Senate in 1998, he was a personal-injury lawyer and a legendary courtroom charmer. As a politician, he used this same jury-tested charm offense on voters and, yes, journalists like me. As a result, he may well talk his way out of jeopardy. But, whether or not Edwards is guilty, anyone who believes in the importance of campaign finance laws should at least recognize that the charges against him are serious enough to merit a trial, despite the tabloid excess.

Walter Shapiro is a special correspondent for The New Republic. He also writes the “Character Sketch” column for Yahoo News. Follow him on twitter @waltershapiroPD.